E.T Ry. Co. v. Scurlock , 97 Tex. 305 ( 1904 )

Defendant in error sought by this action to recover damages resulting from the construction and operation of defendant's depot and railway upon a public street adjacent to his homestead. An element of damage claimed was diminution in the value of the property. The evidence tended to show interference with the comfort and convenience of plaintiff and his family in the use of their home by noise, smoke, cinders and other circumstances connected with the operation of the road, and that the property had been thereby rendered less suitable for a residence. Other testimony tended to show that, notwithstanding these things, the market value of the property had not been diminished but increased by reason of special benefits resulting from improvement of the street and the location of the road and depot. It is now claimed by the plaintiff in error that the charge of the court authorized the recovery of damage, as for decrease in the value of the property, if its value for use as a residence, only, was lessened, although its market value generally, because, of benefit arising from the presence of the railroad, was as great or greater than it was before the location of the road. The rule of law upon the subject is laid down in the case of Boyer Lucas v. St. Louis, San Francisco Texas Railway Co., 97 Tex. 107 [97 Tex. 107], 1 Texas Law Journal, 315, and need not be restated. The charges given in this case in terms made the measure of damage the difference in the market values before and after the construction and operation of the road, but contained such repeated directions to the jury that they should, in determining this, consider the purpose for which the property was used, that it was probably calculated to convey the idea that the values for that use were to control, or, at least, to unduly emphasize the fact so often referred to. It is doubtful if plaintiff in error, having asked a special charge in substantially the same language as that used by the court, can complain of this. As the judgment is to be reversed on other points, the objections noticed can be obviated in another trial.

We are of the opinion that the evidence of the witness J.J. Richardson as to the effect of the railroad upon the value of the property should have been excluded. His answers showed he had no knowledge of the value of the property before or after the acts of the defendant complained of, but he was allowed to state what others had said to him and also his own private preferences upon the subject. Opinions of competent witnesses are admissible on such questions with proper limitations; one of which is, that before being allowed to give opinions, they must be shown to possess knowledge sufficient to enable them to form intelligent ones. Unless a witness is thus qualified, he is not in a better position to form an opinion than the jury. Whatever may have been the opportunities of this witness to form an opinion, he candidly admitted that he did not know the effect upon values which the railroad produced, and undertook only to state that he himself would prefer the property if the road were not there, and what other people had said to him. His individual preferences were irrelevant, and the statements of others hearsay. Southern Pac. Ry. Co. v. Maddox Co., 75 Tex. 305. The plaintiff having testified, in chief, that the value of his property before the construction of the railway was $2000, and since such construction was $1000 or $1250, he was asked on cross-examination the following questions, to each of which, in succession, objection of his counsel that this was not the rule for arriving at the market value of the property, was sustained: "What will you take for your place now?" "Will you take $1000 for your place now?" "You say the market value of your place now is $1250; will you take that for it?" We are of opinion that the questions were proper cross-examination. The defendant had the right, in all proper ways, to test the good faith and accuracy of the plaintiff's statements in chief, and this was one legitimate method of doing so. That the answer to the questions may not have afforded the proper measure of damage may be true, but with such explanations as the witness might have offered, they might have given some help to the jury in determining the fairness and correctness of the witness' statements of values. The judgment is reversed and the cause remanded.

Reversed and remanded.